Framing religion in constitutional politics: a view from Indian Constitutional Law

ABSTRACT

Modern constitutional power is organized to secure ever-expanding state control over vast swathes of social and cultural life. Though religion is classically thought to be a domain of human experience that is to be left independent of state power, it is in fact deeply structured by contemporary government. Against this background, this paper examines the manner in which the Indian constitutional state exercises its power over religion and religious practices. It does so by arguing that the epistemic forms through which control is exercised over Indian religious practices operate to misunderstand, distort and flatten out local conceptions of religion, spirituality and ethical striving. That is, by following classic decisions on the bounds of religious freedom as decided by the Indian Supreme Court, it is argued that religion understood primarily as traditions of continued inter-generational practice are transformed in judicial description as practices founded in an imagined doctrinal foundation. This judicial transformation of religion is presented as being counter-intuitive to the nature of religious experience of almost all religious traditions in the Indian sub-continent. And in turn, this is presented as a challenge to secure the allegiance and consent of the Indian people to the ever-widening reach of state power over religion in contemporary India.

KEYWORDS:

• Universitas
• essential practice
• court
• traditional religion
• rational religion
• Hinduism

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. For an account of the strands of thinking reflecting the deeper constitutional commitments that inflect juridical rules, see Martin Loughlin, ‘Droit Politique’ (2017) 17 Jus Politicum: Revue de Droit Politique 295.

2. For a sample of the Indian debate see Derrett, Religion, Law and the State in India; Dhavan and Nariman, ‘The Supreme Court and Group Life: Religious Freedom, Minority Groups and Disadvantaged Communities’; Galanter, ‘Hinduism, Secularism, and the Indian Judiciary’; Surendranath, ‘Essential Practices Doctrine: Towards Inevitable Constitutional Burial’; Bhatia, ‘Freedom from Community’.

3. Oakeshott, On Human Conduct, 205–6.

4. Ibid., 202–3.

5. Loughlin, Foundations of Public Law, 163.

6. See Loughlin, Foundations of Public Law Especially Chapter 7 which discusses law as embodying the spirit of a people.

7. See also Arendt, On Revolution.

8. Constituent Assembly Debates, 7:781.

9. The Indian constituent assembly was advised by an Advisory committee set up under the Cabinet Mission Statement. In turn, the Advisory committee constituted sub-committees on various aspects of Constitutional governance. A considerable part of the structure and design of religious freedom took shape in the deliberations of this committee process especially in the sub-committees on fundamental rights and on minority rights.

10. Rao et al., The Framing of India’s Constitution, 2:122, 140.

11. Ibid., 2:122.

12. Ibid., 2:146–47.

13. Ibid., 2:213.

14. For instance, draft clauses submitted by Ambedkar included provisions abolishing ‘any privilege or disability arising out of rank, birth, person, family, religion or religious usage and custom’, as well as preventing the State from making or enforcing ‘any custom which shall abridge the privileges or immunities of any citizens’. Art. II, Section 1, (1)&(2); Additionally Govind Ballabh Pant expressed similar opinions in the advisory committee discussing the issue of religious freedom when he argued against inclusion of a right to religious practice in the right to religious freedom. According to him ‘To say that it will be open to people to claim a safeguard against a thing done by the legislature in the Supreme or other courts on the ground that the law infringes the practices that come under the name of religion is to make any Constitution utterly unworkable … by introducing the word “religion” it will militate against any real right of religious worship.’ Ibid., 2:79,86, 265.

15. Ibid., 2:265–67.

16. This essay only deals with Article 25 and to some extent Article 26 (which addresses the freedom of religious denominations to manage their affairs). However, the Constitution also makes provision for freedom from religious tax (Article 27) and freedom from religious instruction in schools (Article 28).

17. See Sen, ‘The Indian Supreme Court and the Quest for a ‘rational’ Hinduism‘.

18. The Commissioner Hindu Religious Endowments, Madras v. Sri Laxmindra Thirtha Swamiar of Shirur Mutt MANU/SC/0136/1954.

19. Article 26 reads “Subject to public order, morality and health, every religious denomination or any section thereof shall have the right – (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.

20. Shirur Mutt Case MANU/SC/0136/1954., para 20.

21. M.H. Qureshi v. State of Bihar AIR 1958 SC 731.

22. Ismail Faruqui v. UOI (1994) 6 SCC 360.

23. Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan AIR 1963 SC 1638.

24. Jagdishwaranand v. Police Commissioner, Calcutta AIR 1984 SC 51.

25. S.P. Mittal v. Union of India AIR 1983 SC 1.

26. Dhavan, ‘Religious Freedom in India,‘ 209.

27. Shirur Mutt Case., para 17.

28. Ibid.

29. Mehta, “On the Possibility of Religious Pluralism,” 67.

30. Ibid., 67–68.

31. For a more elaborate discussion of the distinctions Mehta makes it is useful to note the more elaborately argued position by S. N. Balagangadhara on the role that the Christian idea of religion played in the transformation of the Roman tradition. See Balagangadhara, “The Heathen in His Blindness,” chap. 2.

32. This is an observation made by Balagangadhara and De Roover though they describe its operation in relation to the secular state and its ability to treat religions equally. Balagangadhara and Roover, ‘The Secular State and Religious Conflict‘. Ashish Nandy also makes a similar point when we notes the distinction between religion as ideology and religion as faith. Nandy, ‘The Politics of Secularism and the Recovery of Toleration‘, 322–23.

33. MANU/SC/0072/1962.

34. MANU/SC/0072/1962 para 43.

35. Mehta, “On the Possibility of Religious Pluralism.”

36. See note 34 above. 42.

37. MANU/SC/0063/1961.

38. See Supra notes 9–14.

39. AIR 1966 SC 1119.

40. Ibid., 1123.

41. Ibid., 1128.

42. Ibid., 1130.

43. Id. at 1135.

44. See Discussion of Mehta in the section, ‘The search for the truth of religious practices’.